The Claimant and Respondent entered into negotiation to terminate his employment without having to undergo a disciplinary process. A without prejudice offer was made to the Claimant who emailed back accepting the offer "subject to contract and without prejudice" which the Respondent took to mean that he had resigned. The disciplinary procedure did not take place and the Claimant was then off sick for a couple of weeks, during which time the Respondent chased him about the settlement agreement. The Claimant then wrote to say he had not resigned and wished to return to work, the Respondent then confirming that they understood that he had resigned, although there was some uncertainty about the actual date of termination. The ET found that there was no dismissal and that the Claimant had resigned. However, in making that decision, the ET ignored the "without prejudice" communication as those conversations were protected by Section 111A of the Employment Rights Act 1996 even though both parties suggested that they waive the protection of that privilege so that the Tribunal could consider the full circumstances of the case. The ET did consider the acceptance email when making its decision. The Claimant appealed.

The EAT allowed the appeal. There was a clear dispute as to the date of termination. However, even before reaching a final conclusion on whether the contract terminated on 3 March 2016 (as the Respondent contended) or on 15 March 2016 (as the Claimant contended), the ET chose to disregard without prejudice communications prior to the first of these dates. The ET erred in so doing. The ET also erred in concluding that the acceptance email (without reference to the without prejudice offer) amounted to an unambiguous resignation.